Terms and Conditions
I (“Client”) agree to pay Datagain, Inc. (“Datagain”) for any and all transcription work or other services performed by Datagain (the “Work”) on my or my company’s behalf on audio material submitted by me (“Source Material”). Client has reviewed and agrees to the rates on Datagain’s website for its services and agrees to pay for all work performed by Datagain promptly and in full.
Client is fully aware and agrees that it is responsible for an accurate and truthful description of the audio contained on its Source Material. Regardless of Client’s description of the Source Material, in the event its description is inaccurate, the appropriate classification below will apply for all purposes hereunder, including rates. If Datagain determines that its classification of any Source Material is different than the Client’s, it will notify the Client before proceeding with the Work. Client agrees that any work performed over five minutes on an individual file will be charged and paid for by Client. Any samples up to five minutes will not be charged to Client.
Client agrees and understands that pricing is based on the number of speakers in an audio file or source. Client also agrees and understands that audio variables might increase the price. Client also agrees and understands that the level of turnaround time may or may not impact the cost. Datagain guarantees a 98% accuracy rate or higher for good audio. This is any Source Material that is clearly recorded in a controlled environment (preferably professionally) with one person either talking or interviewing one subject with minimal background noise interference and no media noise or defects. The format must be recorded digitally, on standard audio cassette, VHS, or DVD. Client understands that poor duplication procedures can lead to degradation of the original Source Material and could result in a higher price, depending on the degree of degradation. While Datagain does its best to get the most accurate transcript possible regardless of the quality of audio, client should be aware that any audio that does not meet the previous criteria may impact the quality of the transcript and cause it to drop below the 98% accuracy rate. If for some reason, the client is not satisfied with his/her transcript and thinks it falls below the 98% accuracy rate and it was good audio, client has one full month to notify Datagain so that it can examine the discrepancy.
The burden of proof rests with Client and Client realizes and accepts that no transcript is ever “perfect.” Judgment calls have to be made on punctuation, spellings, grammar, etc. Furthermore, often the spoken word consists of run-on sentences and other grammatically incorrect language. Datagain does not correct grammar or proof-read material – it only transcribes what is on the Source Materials. If its accuracy rate is indeed below 98%, Datagain will correct the mistakes free of charge.
All Source Materials are subject to Datagain’s acceptance, which it may exercise in its sole and absolute discretion. Datagain has the right to reject, in its sole and absolute discretion, any Source Material for any reason whatsoever, including without limitation that it is considered to be of such poor quality that: 1. transcription is not possible or 2. the project is beyond Datagain’s resources. If the audio quality of any Source Material appears to be different than the quality represented by Client, Datagain will contact Client and discuss this discrepancy and a possible increased rate. If the parties are unable to agree on the appropriate rate, Datagain may decline to work on the project and, in such case, all Source Materials will be returned and no Work will be performed by Datagain.
If the source audio appears to have a large number of inaudibles or questionable words, Datagain will contact the client with a 5 minute sample. All work will stop for that particular file until the client has notified Datagain if he/she would like to proceed with the file. If the client would prefer to not proceed, Datagain will not charge the client for the first 5 minutes of the sample transcript. Any audio that is completed that is over 5 minutes of audio on a file will be charged to the client.
While Datagain strongly recommends that its clients not submit any original or master Source Materials (“Masters”), in the event that Client elects to submit Masters of its original audio Source Material, Client shall do so solely at its own risk. Client hereby agrees to indemnify and hold Datagain harmless from any expenses, claims, losses, costs, actions or damages, including reasonable attorneys’ fees, (“Claims”) arising out of or related to damage to or loss of any Source Materials whether Masters or duplicates, including without limitation data and media. While Datagain digitizes all audio it receives, it can make no guarantees that the Source Material will be received or returned free from damage during the shipping process. Under any circumstances, Client hereby acknowledges that any Source Materials submitted to Datagain have no commercial value whatsoever. Client agrees to not hold Datagain liable for any loss or damages to or destruction of any Source Materials, including those that may occur in shipping or transmission electronically.
Client agrees to pay all shipping costs for submission and return of Source Materials. Datagain offers Client different shipping options, but when one is not selected, Datagain will send Source Materials back to Client in the most cost-effective way possible (which will likely be the slowest way possible).
Client acknowledges that Datagain bills per minute of recorded audio and not on page count, number of characters, or work hours. Any additional seconds that do not make up a full sixty (60) seconds are billed as a minute. Client agrees to pay the rates prevailing at the time the Work is requested as set forth in the Rates section of Datagain’s website. Payment is due upon delivery of the Work to Client. All clients whether paying by check or credit card must have a valid credit card on file with Datagain. Payment is due within 30 days. For clients who are paying by check and have not paid within 60 days, Datagain reserves the right to charge the credit card on file for the total amount due. Agreement to these Terms of Service hereby authorizes Datagain to charge the credit card on file. Client further agrees that Datagain may hold any Source Materials until it receives payment in full from Client for any Work related to such Source Materials.
This agreement commences as of the date of the first online registration process executed by the Client and terminates upon the termination date of the last service contract in effect between the parties. The initial term (the “Term”) of each service contract will be for a period of twelve (12) months from the date of commencement of service(s) (as defined in the applicable Terms of Service), unless otherwise agreed to by both the parties.
Datagain acknowledges that by reason of its relationship with Client, it may have access to certain information and materials contained in Source Materials in relation to the Client’s business, products, services, clients and marketing strategies that are confidential and of substantial value to the Client (“Confidential Information”). Datagain undertakes not to use in any way for its own account nor for the account of any third party, nor disclose to any third party such Confidential Information revealed to it by Client unless and until required by court order or other legal process to do so or such information passes into the public domain. No information provided by way of transcription will be stored on computers and any transcribed work and sound files shall be deleted upon completion of the Work.
Client shall not copy, upload, post, publish, transmit, reproduce or distribute in any way, information or other material which is protected by a copyright or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or the right holder or violate any individual’s/organization’s right of privacy, right of publicity or other rights. The Work and any work product of the Work shall be used solely for lawful purposes only. Client agrees that it will not use the Work or any work product of the Work in any way that is, or is reasonably likely to be, harmful either to Datagain’s customers, or operations or its reputation.
While Datagain strives for a 98% accuracy rate or better for audio that is properly recorded, Client agrees to release and hold Datagain, it’s employees, officers, directors, and agents harmless of any Claims or damages that may occur from the publication, quotation, distribution, public use or any other use of a quotation from the Work that may contain a typographical or factual or other error or even quotations that are without error. Client agrees that it is its responsibility to proofread and confirm the accuracy of a transcript before information from a transcript is published or printed or otherwise used and Client will not take any action against or include or implicate Datagain, it’s employees, officers, directors, or agents as defendants in any litigation arising out of or related to Client’s use of the Work.
Client hereby indemnifies and holds Datagain and its employees, officers, directors, and agents harmless from and against any and all Claims or threat of Claims and damages against Datagain and/or its employees, officers, directors, and agents arising out of or related to Client’s Source Materials and any use of the Work based thereon.
Datagain shall not be held liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, by the Client or any third party, whether in an action in contract or tort or strict liability or other legal theory, even if Datagain has been advised of the possibility of such damages. If Client is dissatisfied with the Work, Client’s sole and exclusive option is to have Datagain correct mistakes in the Work. Datagain’s sole liability for any Claim or loss, damage or expense from any cause whatsoever arising out of or related to this agreement, the Work or any Source Materials, shall in no event exceed sums actually paid to Datagain by Client. Datagain shall not be liable for any failure or delay in performing its obligations hereunder, if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or labor disturbance, interruption of or delay in transportation, or inability to obtain raw materials, supplies or power used in, or the equipment needed for the provision of the Work.
Client acknowledges that checking the box, “I agree that I have read and will abide by the Terms of Service agreement listed on this site” creates a complete and binding agreement between Client and Datagain and binds Client to the terms of service listed in this document in which all prior or contemporaneous agreements are merged. During the Term of this agreement, each instance of provision of services hereunder shall be subject to these Terms of Service. Datagain reserves the right to make changes to this Terms of Service agreement from time-to-time. Any such modifications made to it can be found on the current Datagain website. This agreement is not assignable by either party. To the extent that any provision hereof is deemed unenforceable, all remaining provisions of this Agreement will not be affected thereby and will remain in full force and effect. All indemnifications and limitations on liability will survive any termination or expiration of this agreement. This agreement and any Claim related directly or indirectly to this agreement shall be governed and construed in accordance with the laws of the State of California (without giving regard to the conflicts of law provisions thereof). No such Claim shall be commenced, prosecuted or continued in any forum other than the courts of the State of California located in the County of Los Angeles or in the United States District Court for the Central District of California, and each of the parties hereby submits to the jurisdiction of such courts. Each of the parties hereby waives on behalf of itself and its successors and assigns any and all right to argue in any legal action that this choice of forum provision is or has become unreasonable.